[Federal Register Volume 64, Number 66 (Wednesday, April 7, 1999)]
[Proposed Rules]
[Pages 16870-16874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8444]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 777
[FHWA Docket No. FHWA-97-2514; 96-8]
RIN 2125-AD78
Mitigation of Impacts to Wetlands and Natural Habitat
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Supplemental notice of proposed rulemaking (SNPRM); request for
comments.
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SUMMARY: The FHWA is further supplementing its June 17, 1996, notice of
proposed rulemaking (NPRM), Mitigation of Impacts to Wetlands, and June
18, 1997, supplemental notice of proposed rulemaking (SNPRM) on the
same subject, as described in the supplementary information. This SNPRM
also updates the FHWA's wetlands regulation to conform with wetland and
natural habitat mitigation provisions contained in the recently enacted
Transportation Equity Act for the 21st Century (TEA-21).
DATES: Comments must be received on or before June 7, 1999.
ADDRESSES: All signed, written comments must refer to the docket number
appearing at the top of this document. Submit all comments to the
Docket clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, SW.,
Washington, DC 20590-0001. All comments received will be available for
examination at the above address between 10 a.m. and 5 p.m., e.t.,
Monday through Friday, except Federal holidays. Those desiring
notification of receipt of comments must include a self-addressed,
stamped envelope or postcard.
[[Page 16871]]
FOR FURTHER INFORMATION CONTACT: Mr. Paul Garrett, Office of Natural
Environment, HENE, (303) 969-5772, extension 332, or Mr. Brett Gainer,
Office of the Chief Counsel, HCC-31, (202) 366-1372, Federal Highway
Administration, 400 Seventh Street, SW., Washington, D.C. 20590. Office
hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday,
except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
Internet users can access all comments received by the U.S. DOT
Dockets, Room PL-401, by using the universal source locator (URL):
http://dms.dot.gov. It is available 24 hours each day, 365 days a year.
Please follow the instructions online for more information and help.
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the Government Printing
Office's Electronic Bulletin Board Service at (202)-512-1661. Internet
users may reach the Federal Register's home page at: http://
www.nara.gov/fedreg and the Government Printing Office's database at
http://www.access.gpo.gov/nara.
I. The Rulemaking Process
This rulemaking would amend the FHWA's regulation on wetlands
mitigation to conform with the provisions of the Intermodal Surface
Transportation Efficiency Act (ISTEA) (Pub. L. 102-240, 105 Stat.1914),
TEA-21, and state-of-the-art practices in wetland science, technology,
and management.
II. Public Participation
An NPRM on this subject was published in the Federal Register on
June 17, 1996 (61 FR 30553). The comment period was from June 17
through August 16, 1996. Subsequently, an SNPRM was published in the
Federal Register on June 18, 1997 (62 FR 33047). The comment period for
this SNPRM was from June 18 through August 18, 1997.
In its June 17, 1996, NPRM and June 18, 1997, SNPRM, the FHWA
proposed to amend 23 CFR part 777, Mitigation of Impacts to Privately
owned Wetlands, in order to update the current, out-dated regulations
in light of changes brought about by the ISTEA. Specifically, the June
17, 1996, NPRM proposed revision to the previous regulation (23 CFR
part 777) to conform to ISTEA, thereby providing more flexibility to
State Departments of Transportation (DOT) in determining eligibility of
mitigation alternatives for Federal participation. The NPRM proposed
broadening the scope of the regulation to encompass all wetland
mitigation projects eligible for Federal participation, not just those
involving privately owned wetlands. The June 18, 1997 SNPRM proposed to
clarify the scope of the FHWA's wetlands regulations by specifying that
they apply to all projects funded pursuant to the provisions of title
23, United States Code (Title 23). The rulemaking proposed also to make
a technical amendment to the text of the June 17, 1996 NPRM.
Recently, TEA-21 (Pub. L. 105-178, 112 Stat. 107) added funding
eligibility under the NHS and STP programs for mitigation of impacts on
natural habitats due to highway projects funded under title 23, U.S.C.
This rulemaking would also include a provision requiring that existing
wetland and habitat mitigation banks be given preference for use in
establishing compensatory mitigation if the highway project impacts
occur within the bank's service area (Sections 1106(b) and 1108(a) of
TEA-21; 23 U.S.C. 103(b)(6)(M) and 133(b)(11). In this SNPRM, the FHWA
would revise the current proposed regulation to conform to the
authority of TEA-21.
In addition to making changes to conform with TEA-21, this proposal
would broaden the scope of the current regulation to encompass all
mitigation projects for impacts to wetlands and natural habitats
eligible for Federal participation, not just those involving privately
owned wetlands. This SNPRM also applies to projects under the Federal
Lands Highway Program, as described in Sec. 777.1, Purpose.
With all this in mind, the FHWA has decided to issue this SNPRM,
which would further amend part 777. At each place where the term
``wetlands'' occurs in the regulatory text, this SNPRM proposes to add
either the words ``natural habitat'' or ``habitat.'' In addition,
Sec. 777.2, Definitions, would be amended to add a definition of the
term ``natural habitat.'' Where negative impacts are unavoidable, the
Department of Transportation's Fiscal Year 1999 and 2000 Performance
Plans establish an objective to minimize the adverse impacts of
projects on wetlands and to achieve a net gain of wetlands in the
Federal-aid and Federal Lands Highway Programs. Thus, a new definition
for ``net gain of wetlands'' would be added to Sec. 777.2.
Section 777.9, Mitigation of Impacts, would be amended by adding a
preference for existing wetlands banks or natural habitat banks to the
provision authorizing the expenditure of Federal-aid highway funds for
wetlands and natural habitat mitigation banking and related measures.
Finally, the title of part 777 would be changed to read,
``Mitigation of Impacts to Wetlands and Natural Habitat.'' The FHWA
invites comments on this new proposal.
Rulemaking Analyses and Notices
All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in the docket at the above address. Comments received
after the comment closing date will be filed in the docket and will be
considered to the extent practicable, but the FHWA may issue a final
rule at any time after the close of the comment period. In addition to
late comments, the FHWA will also continue to file in the docket
relevant information that becomes available after the comment closing
date, and interested persons should continue to examine the docket for
new material.
Executive Order 12866 (Regulatory Planning and Review and DOT
Regulatory Policies and Procedures)
The FHWA has considered the impact of this document and has
determined that it is neither a significant rulemaking action within
the meaning of Executive Order 12866 nor a significant rulemaking under
the regulatory policies and procedures of the Department of
Transportation. This rulemaking would supplement the FHWA's NPRM
proposing to amend its regulations regarding mitigation of impacts to
privately owned wetlands, which have become outdated because of
provisions in Sections 1006 and 1007 of the ISTEA authorizing greater
flexibility for Federal participation in mitigating impacts to
wetlands. These amendments have been codified at 23 U.S.C. 103 and 133.
The recently enacted TEA-21 added the term ``natural habitat'' to the
eligibility provisions of 23 U.S.C. 103 and 133, and added a preference
for the use of established mitigation banks for wetland mitigation
activities. This SNPRM would amend the NPRM to address these new
provisions.
This SNPRM would not cause any significant changes to the amount of
funding available to the States under the STP or NHS programs or add to
the process by which States receive funding. The provisions of this
proposed rulemaking would not require the additional expenditure of
Federal-aid or State highway funds. Instead, this SNPRM would merely
clarify the scope of the FHWA's wetlands regulations by specifying that
they apply to all projects
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funded pursuant to title 23, U.S.C. Thus, it is anticipated that the
economic impact of this rulemaking would be minimal. In addition, it
would not create a serious inconsistency with any other agency's action
or materially alter the budgetary impact of any entitlements, grants,
user fees, or loan programs; nor will amendment of this regulation
raise any novel legal or policy issues. Therefore, a full regulatory
evaluation is not required.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this SNPRM on small
entities and has determined it would not have a significant economic
impact on a substantial number of small entities. Supplementing the
FHWA's June 17, 1996, NPRM and June 18, 1997, SNPRM in this manner
would not affect the amount of funding available to the States through
the STP or NHS programs, or the procedures used to select the States
eligible to receive these funds. Furthermore, States are not included
in the definition of ``small entity'' set forth in 5 U.S.C. 601. For
these reasons, and for those set forth in the analysis of E.O. 12866,
the FHWA hereby certifies that this action will not have a significant
economic impact on a substantial number of small entities.
Unfunded Mandates Reform Act of 1995
This proposed rule would not impose a Federal mandate resulting in
the expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any one
year (2 U.S.C. 1532).
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this action does not raise sufficient federalism implications to
warrant the preparation of a federalism assessment. This SNPRM would
not preempt any State law or State regulation. No additional costs or
burdens would be imposed on the States as a result of this action, and
the States' ability to discharge traditional State governmental
functions would not be affected by this rulemaking.
Executive Order 12372
Catalog of Domestic Assistance Program Number 20.205, Highway
Planning and Construction. The regulations implementing Executive Order
12372 regarding intergovernmental consultation on Federal programs and
activities apply to this program.
Paperwork Reduction Act
This action does not create a collection of information requirement
for the purposes of the Paperwork Reduction Act of 1995, 44 U.S.C.
3501-3520.
National Environmental Policy Act
The FHWA has analyzed this rulemaking for the purposes of the
National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347).
This SNPRM would not, in and of itself, constitute a major Federal
action significantly affecting the quality of the human environment.
Instead, it would clarify the scope of the June 17, 1996, NPRM, which
was intended to increase the flexibility available to States when
deciding how to mitigate impacts to wetlands resulting from projects
funded pursuant to the provisions of title 23, U.S.C. The passage of
TEA-21, with its addition of the term ``natural habitat'' to the
wetlands mitigation banking provisions of title 23, U.S.C., made this
SNPRM necessary. Such impacts to wetlands and natural habitat and
appropriate mitigation measures would be evaluated pursuant to NEPA on
a project-by-project basis by the States and the FHWA. Accordingly,
promulgation of this SNPRM would not require the preparation of an
environmental impact statement.
Regulatory Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 23 CFR Part 777
Flood plains, Grant programs--transportation, Highways and roads,
Natural habitat, Wetlands.
Issued on: March 31, 1999.
Kenneth R. Wykle,
Federal Highway Administrator.
In consideration of the foregoing, the FHWA proposes to revise 23
CFR part 777, as set forth below:
1. Part 777 is revised to read as follows:
PART 777--MITIGATION OF IMPACTS TO WETLANDS AND NATURAL HABITAT
Sec.
777.1 Purpose.
777.2 Definitions.
777.3 Background.
777.5 Federal participation.
777.7 Evaluation of impacts.
777.9 Mitigation of impacts.
777.11 Other considerations.
Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 303; 23 U.S.C.
101(a), 103, 109(h), 133(b)(1), 133(b)(11), 133(d)(2), 138, 315;
E.O. 11990; DOT Order 5660.1A; 49 CFR 1.48(b).
Sec. 777.1 Purpose.
To provide policy and procedures for the evaluation and mitigation
of adverse environmental impacts to wetlands and natural habitat
resulting from Federal-aid projects funded pursuant to provisions of
title 23, U.S.C. These policies and procedures shall be applied by the
Federal Highway Administration (FHWA) to projects under the Federal
Lands Highway Program to the extent such application is deemed
appropriate by the FHWA.
Sec. 777.2 Definitions.
In addition to those contained in 23 U.S.C. 101(a), the following
definitions shall apply as used in this regulation:
Biogeochemical transformations. Those changes in chemical compounds
and substances which naturally occur in ecosystems. Examples are the
carbon, nitrogen, and phosphorus cycles in nature, in which these
elements are incorporated from inorganic substances into organic matter
and recycled on a continuing basis.
Compensatory mitigation. Activities such as restoration,
enhancement, creation, and under exceptional circumstances,
preservation, of wetlands, wetland buffer areas, and natural habitats,
carried out to replace or compensate for the loss of wetlands or
natural habitat area or functional capacity resulting from Federal-aid
projects funded pursuant to provisions of title 23, U.S.C. Compensatory
mitigation usually occurs in advance of or concurrent with the impacts
to be mitigated, but may occur after such impacts in special
circumstances.
Ecologically desirable. A state or condition desired or wanted as
the result of a mitigation agreement that provides additional wetland
or natural habitat area or functional capacity.
Natural habitat. A complex of natural, primarily native or
indigenous vegetation, not subject to cultivation or current artificial
landscaping, a primary purpose of which is to provide habitat for
wildlife, either terrestrial or aquatic.
[[Page 16873]]
For purposes of this regulation, habitat has the same meaning as
natural habitat.
Net gain of wetlands. When project impacts are unavoidable, a
wetland resource conservation and management principle under which,
over the long term, losses of wetlands area of functional capacity due
to highway projects are offset by gains at a ratio greater than 1:1,
through restoration, enhancement, preservation, or creation of wetlands
or associated areas critical to the protection or conservation of
wetlands functions. This definition specifically excludes natural
habitat, as defined in this section, other than wetlands.
On-site, in-kind mitigation. Compensatory mitigation which replaces
wetlands or natural habitat area or functions lost as a result of a
highway project with the same or like wetland or habitat type and
functions adjacent or contiguous to the site of the impacts.
Service area of a mitigation bank. The service area of a wetland or
natural habitat mitigation bank shall be consistent with that in the
Federal Guidance for the Establishment, Use and Operation of Mitigation
Banks,\1\ i.e., the designated area (e.g., watershed, county) wherein a
bank can be expected to provide appropriate compensation for impacts to
wetlands and/or other aquatic or natural habitat resources.
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\1\ This document is available from FHWA Headquarters, Resource
Centers, and individual State Division Offices for inspection and
copying as prescribed at 49 CFR Part 7.
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Wetland or habitat enhancement. Increasing the capacity of an
altered or degraded site to perform specific functions by modifying the
site conditions in or around the wetland or natural habitat. Examples
include, but are not limited to, alteration of hydrologic regime,
vegetation management, erosion control, fencing, pest control, and
fertilization.
Wetland or habitat establishment period. An agreed-upon period of
time required to establish wetland functional capacity in a
compensatory mitigation project sufficient to compensate wetlands or
habitat losses due to impacts of Federal-aid highway projects. The
establishment period may vary depending on the specific wetland or
habitat type being developed.
Wetland or habitat functional capacity. The ability of a wetland or
natural habitat to perform natural functions, such as provide wildlife
habitat, support biodiversity, store surface water, or perform
biogeochemical transformations, as determined by scientific functional
assessment. Natural functions of wetlands include, but are not limited
to, those listed by the U.S. Army Corps of Engineers at 33 CFR
320.4(b)(2)(I) through (viii).
Wetland or habitat restoration. Reestablishment of wetlands or
natural habitats on a site where they formerly existed but essentially
have been eliminated.
Wetland or wetlands. The terms wetland and wetlands have the same
meaning as the definition issued by the U.S. Army Corps of Engineers
(33 CFR 328.3(b)) and the U.S. Environmental Protection Agency (40 CFR
230.3).
Wetlands and habitat banking and related measures. Efforts, or
contributions to efforts, to restore, create, enhance, or, in
exceptional circumstances, preserve wetlands, natural habitats, or
functional capacity of these areas , usually undertaken in advance and
outside the area of direct impacts of proposed Federal-aid highway
projects and intended expressly to compensate for unavoidable wetlands
or habitat losses caused by such projects, when compensation could not
be achieved or would not be as environmentally beneficial if located at
individual project impact sites.
Wetlands or habitat mitigation credit. A unit of wetlands or
habitat mitigation, defined either by:
(1) Area or
(2) A measure of functional capacity through application of
scientific functional assessment.
Sec. 777.3 Background.
(a) Executive Order 11990, Protection of Wetlands, and DOT Order
5660.1A, Preservation of the Nation's Wetlands, emphasize the important
functions and values inherent in the Nation's wetlands.
(b) Federal agencies are directed to avoid new construction in
wetlands unless the head of the agency determines that:
(1) There is no practicable alternative to such construction, and
(2) The proposed action includes all practicable measures to
minimize harm to wetlands which may result from such use.
(c) Sections 103 and 133 of title 23, U.S.C., identify additional
approaches for mitigation and management of impacts to wetlands and
natural habitats which result from projects funded pursuant to title
23, U.S.C., as eligible for participation with Federal-aid highway
funds.
Sec. 777.5 Federal participation.
(a) Those measures which the FHWA and a State DOT find appropriate
and necessary to mitigate adverse environmental impacts to wetlands and
natural habitats are eligible for Federal participation where the
impacts are the result of projects funded pursuant to title 23, U.S.C.
The justification for the cost of proposed mitigation measures should
be considered in the same context as any other public expenditure; that
is, the proposed mitigation represents a reasonable public expenditure
when weighed against other social, economic, and environmental values,
and the benefit realized is commensurate with the proposed expenditure.
Mitigation measures shall give like consideration to traffic needs,
safety, durability, and economy of maintenance of the highway.
(b) It is FHWA policy to permit, consistent with the limits set
forth in this part, the expenditure of title 23, U.S.C., funds for
activities required for the planning, design, construction, and
establishment of wetlands and natural habitat mitigation projects, and
acquisition of land or interests therein.
Sec. 777.7 Evaluation of impacts.
(a) The reasonableness of the public expenditure should be directly
related to:
(1) The importance of the impacted wetlands and natural habitats,
and
(2) The extent of highway impacts on the wetlands and natural
habitats, as determined through an appropriate, interdisciplinary,
impact assessment.
(b) Evaluation of the importance of the impacted wetlands and
natural habitats should consider:
(1) The wetlands' and natural habitat functional capacity;
(2) Input from the appropriate resource management agencies through
interagency coordination;
(3) The relative importance of these functions to the total wetland
or natural habitat resource of the area; and
(4) Other factors such as uniqueness, esthetics, or cultural
values.
(c) A determination of the highway impact should focus on both the
short-and long-term effects of the project on wetland or natural
habitat functional capacity, consistent with 40 CFR 1502.16.
Sec. 777.9 Mitigation of impacts.
(a) Actions eligible for Federal funding. There are a number of
actions that can be taken to minimize the impact of highway projects on
wetlands or natural habitats. The following actions qualify for
Federal-aid highway funding:
(1) Where practicable, avoidance or minimization of impacts to
wetlands or
[[Page 16874]]
natural habitats through realignment and special design or construction
features. In accordance with the Environmental Protection Agency's
Clean Water Act Section 404(b)(1) guidelines (40 CFR part 230 et seq.),
avoidance and then minimization must be given first consideration in
mitigating wetlands impacts. These guidelines apply only to impacts to
wetlands regulated under Section 404 of the Clean Water Act.
(2) After practicable avoidance and minimization measures have been
exhausted, other ecologically desirable compensatory mitigation
alternatives, either inside or outside of the right-of-way. These may
include such measures as on-site mitigation, when that alternative is
determined to be ecologically desirable and practicable; improvement of
existing degraded or historic wetlands or natural habitats through
restoration or enhancement on or off site; creation of new wetlands
from non-wetland areas off-site; and under exceptional circumstances,
preservation of existing wetlands or natural habitats on or off site.
Restoration of wetlands is generally preferable to enhancement or
creation of new wetlands from non-wetland areas.
(3) Improvements to existing wetlands or natural habitats. Such
activities may include, but are not limited to, construction or
modification of water level control structures or ditches,
establishment of natural vegetation, recontouring of the site,
installation or removal of irrigation or water distribution systems,
pest control, installation of fencing, site monitoring, and other
measures to protect, enhance, or restore the wetland or natural habitat
character of the site.
(4) Wetlands mitigation banking and related measures. With respect
to participation in a natural habitat or wetland mitigation effort
related to a project funded under this title that has an impact that
occurs within the service area of a mitigation bank, preference shall
be given, to the maximum extent practicable, to the use of the
mitigation bank if the bank contains sufficient available credits to
offset the impact and the bank is approved in accordance with the
Federal Guidance for the Establishment, Use and Operation of Mitigation
Banks \2\ or other applicable Federal law (including regulations).
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\2\ See footnote 1.
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(b) Participation in wetlands or natural habitat mitigation banks.
If the development or acquisition of mitigation credits in wetland or
natural habitat mitigation banks, either on or off-site, is determined
to be the most ecologically desirable and practicable alternative for
compensatory mitigation, banking alternatives eligible for
participation with Federal-aid funds include such measures as the
following:
(1) Multi-user wetlands or natural habitat banks established on
publicly owned or controlled lands;
(2) Single purpose publicly owned banks, established by and for the
use of a State DOT with Federal-aid participation; or multipurpose
publicly owned banks, established with public, non-Federal-aid funds,
in which credits may be purchased by highway agencies using Federal-aid
funds on a per-credit basis; or
(3) Other forms of mitigation banks in which mitigation credits are
purchased by State DOTs to mitigate wetlands or habitat impacts due to
projects funded under title 23, U.S.C., including privately owned banks
or those established with private funds to mitigate wetland or natural
habitat losses which have been approved and/or permitted by the
appropriate regulatory agency.
(c) Contributions to statewide and regional efforts to conserve,
restore, enhance and create wetlands or natural habitats. Federal-aid
funds may participate in the development of statewide and regional
wetlands conservation plans, including any efforts and plans authorized
pursuant to the Water Resources Development Act of 1990 (Pub. L. 101-
640). Contributions to these efforts may occur in advance of project
construction only if such efforts are consistent with all applicable
requirements of Federal law and regulations and State transportation
planning processes.
Sec. 777.11 Other considerations.
(a) The development of measures proposed to mitigate impacts to
wetlands or natural habitats should include consultation with
appropriate State and Federal agencies.
(b) Federal-aid funds may not participate in the replacement of
wetlands or natural habitats absent sufficient assurances that the area
will be maintained in the intended state as a wetland or natural
habitat.
(c) The acquisition of proprietary interests in replacement
wetlands or natural habitats as a mitigation measure may be in fee
simple or by easement, as appropriate. The acquisition of ``mitigation
credits'' in wetland or natural habitat mitigation banks should be
accomplished through a legally recognized instrument, such as permanent
easement or deed restriction, which provides for protection and
permanent continuation of the wetland or natural habitat nature of the
mitigation.
(d) A State DOT may acquire privately owned lands in cooperation
with another public agency or third party. Such an arrangement may
accomplish greater benefits than would otherwise be accomplished by the
individual agency acting alone.
(e) A State DOT may transfer the title to, or enter into an
agreement with, an appropriate public natural resource management
agency to manage lands acquired outside the right of way without
requiring a credit to Federal funds. Any such transfer of title or
agreement shall require the continued use of the lands for the purpose
for which they were acquired. In the event the purpose is no longer
served, the lands and interests therein shall immediately revert to the
State DOT for proper disposition.
(f) The reasonable costs of acquiring lands or interests therein to
provide replacement lands with equivalent wetlands or natural habitat
area or functional capacity associated with these areas are eligible
for Federal participation.
(g) The objective in mitigating impacts to wetlands in the Federal-
aid highway program is to implement the policy of a net gain of
wetlands on a program wide basis, when project impacts are unavoidable.
(h) Certain activities to ensure the viability of compensatory
mitigation wetlands or natural habitats during the period of
establishment are eligible for Federal-aid participation. These
include, but are not limited to, such activities as repair or
adjustment of water control structures, pest control, irrigation,
fencing modifications, replacement of plantings, and mitigation site
monitoring. The establishment period should be specifically determined
by the mitigation agreement among the mitigation planners prior to
beginning any compensatory mitigation activities.
[FR Doc. 99-8444 Filed 4-6-99; 8:45 am]
BILLING CODE 4910-22-P
